DOMA: Describing a life in the shadows

Posted Tue, February 26th, 2013 3:51 pm by Lyle Denniston

Chronicling her own life of living in the shadows because she is a lesbian, an eighty-three-year-old woman urged the Supreme Court on Tuesday to recognize her as a constitutional equal in eligibility for federal benefits that go to married couples. She had to pay an estate tax of $363,053 when her same-sex spouse died four years ago and left her an estate — a tax that she said would never have been due if she had married a man.

Ms. Edith Schlain Windsor filed her brief challenging the constitutionality of the federal Defense of Marriage Act of 1996, arguing that the measure was hastily passed by Congress in a mood of deep hostility to gays and lesbians and, in the process, denied homosexuals who have been allowed to marry each other of all of the benefits and programs that federal law has created for married couples.

The New York City widow is the individual at the center of the Supreme Court case, United States v. Windsor (docket 12-307), that is now being briefed and will be heard by the Court on March 27. Although she and the federal government are nominally on opposite sides of the case, they agree that DOMA’s Section 3 on federal marital benefits is unconstitutional. Section 3 specifies that more than one thousand provisions of federal law on marital rights apply only to marriages of a man and a woman.

She and the government also agree that the Court should apply a more rigorous constitutional test to laws that treat gays and lesbians less favorably. That plea, if accepted by the Justices, would specify for the first time a controlling — and difficult to meet — standard for judging such laws.

Although the bulk of her sixty-two pages of history and legal argument is meant to be an answer to all of the arguments against same-sex marriage that have been put before the Court by the Republican leaders of the House, as defenders of DOMA, the opening of the Windsor brief is designed to show how she experienced years of living with a fear of revealing her sexual identity.

Those pages are part of the legal argument that homosexuals have long been, and remain, victims of widespread intolerance and are now entitled to have such bias judged by a tough standard. But those pages also are intended to give a human face to the case and to the claim that it is time for the Court to recognize gays and lesbians as part of the American community.

She noted that, at the time she fell in love with Thea Spyer in the early 1960s, it was “a time when lesbians and gay men risked losing their families, friends, and livelihoods if their sexual orientation became known.” The couple then began “a relationship that would last until Dr. Spyer’s death forty-four years later.”

Before they met, Ms. Windsor had tried a brief marriage with a man “because she did not believe that it was possible for her to live openly as a lesbian.” While she was in graduate school, she noted, she worked as a computer programmer for the Atomic Energy Commission at a time when a presidential executive order barred the government from employing homosexuals — but she was never asked by the FBI about her sexual orientation in reviewing her eligibility for security clearance.

When she was later hired by IBM as a programmer, that employment, too, was supposed to be barred because IBM was a government contractor.

When she and Dr. Spyer were engaging in their courtship in New York City, they met at a restaurant where lesbians were allowed to eat. After they moved in together and became engaged, Dr. Spyer gave her a diamond brooch instead of a ring, to avoid questions from Ms Windsor’s co-workers if they knew she was engaged.

Because New York did not permit gay marriages, the couple was wed in Canada because Dr. Spyer had been diagnosed with multiple sclerosis, and they wanted to get married while they could, the brief recounted. At the time, Ms. Windsor was seventy-seven and Dr. Spyer was seventy-five. They were married in Toronto in May 2007, and lived together in New York until Dr. Spyer died on February 9, 2009.

Under the provisions of the DOMA law, Ms Windsor was not eligible for relief from the federal estate tax when Dr. Spyer left her a sizable estate. Married couples are entitled to a deduction for that tax.

In the new brief’s legal arguments, they closely track those that the federal government made last week in its brief on the merits in their shared case.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.